State Bar of Michigan
Volume 1, Issue 1, November 2004

Disabilities Project Newsletter

Deaf and Hard of Hearing
by Brian Sheridan, Steward & Sheridan PLC

The following information is to assist judges, court personnel, attorneys, litigants, and witnesses in learning more about deaf and hard of hearing issues in the courtroom setting. Four topics are briefly covered in the article:

Legal requirements for access by deaf or hard of hearing persons to the court system

Practical problems that arise in the court setting including difficulties that arise in the use of equipment for the deaf or hard of hearing, and challenges in signing for the deaf

Suggestions for hard of hearing persons who will be in court

A list of references to assist one in making accommodations for the deaf or hard of hearing in the court system

I. Legal Requirements for Access by Deaf or Hard of Hearing Persons to the Court System

Title II of the Americans with Disabilities Act (ADA) provides for access by the disabled to all state courts. The U.S. Justice Department analysis of the ADA implementing regulation (28 CFR 35.160) states that:

“When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. ‘Primary consideration’ means that the public entity must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens.”

“The obligation of public entities to provide necessary auxiliary aids and services is not limited to individuals with a direct interest in the proceedings or outcome. Courtroom spectators with disabilities are also participants in the court program and are entitled to such aids or services as will afford them an equal opportunity to follow the court proceedings.”

II. Practical Problems that May Arise in Court

1. Deaf or hard of hearing persons may be unaware of their rights and may not request appropriate accommodations. They may, therefore, either attend proceedings that they cannot participate in or avoid the court system altogether. They thereby exclude themselves from jury duty or from attempting to assert or defend their rights through the legal system.

2. Often when a request for accommodations is made, there is no clear line of authority that exists in the particular courthouse as to who will take the request, who will make the provisions for the requested aids or services, and who will schedule and locate the aids or services.

3. At the time of the court proceeding, staff may not be able to locate or set up the equipment. The equipment may not work (or may stop working during the proceeding) and the most knowledgeable person about its operation may not be immediately available, especially if the system was not originally installed by courthouse personnel.

4. A deaf or hard of hearing person may not be conversant with the use of the provided equipment; and the court staff may assume that simply because the person is hard of hearing, he or she will immediately be able to use all components of the equipment, including the jacks, neck loops, and other features.

5. A court might initially refuse to provide the requested accommodations, or ask that the hard of hearing persons bring their own equipment. Sometimes inadequate or non-working equipment is provided. In the case of interpreters, it may be suggested (or required) that family members interpret, or that real-time reporting will address the needs of deaf persons. This does not consider how the deaf person will communicate to the court and does not consider the difference between reading and signing as receptive communication. A personal listening system with only one microphone, for example, will not be sufficient because the hard of hearing person must be able to understand counsel at both tables, the judge, and the witness.

III. Suggestions for Deaf or Hard of Hearing Persons Who Will be in Court

1. Contact the court as far in advance as possible for any hearings. File the SCAO Form MC 70 (Request for Accommodations). Even if you do not have a hearing date, but know that you will be in court (as a juror, party, witness, or attorney), ask the court what is available and make your needs known.

2. Be specific as to when you need an interpreter, an assistive listening device, or real-time reporting. If you are going to use an assistive listening device, make sure the court knows, and you know, how it works, how you are going to use it (neck loop, earphones, patch cord), and who is going to provide each of the parts.

3. As far in advance of the actual hearing date as possible, verify that the court will be providing the requested service or aids. Ask that you be allowed to test the system or meet the interpreter beforehand.